Written by Zane McNeill, Civil Rights & Health Equity Legal Fellow
BSince Dobbs v. Jackson overturned the constitutional right to abortion, states have increasingly passed legislation banning abortion and targeting providers. So far, no providers have been criminally convicted of violating a state abortion ban, but Texas is trying to change that.
Last March, Texas Attorney General Ken Paxton filed both civil and criminal charges against Houston-area midwife Maria Margarita Rojas, alleging that she provided abortion services in violation of the state’s abortion ban and practiced medicine without a license. Last year in the civil case a lower court issued a temporary restraining order against Rojas, and her three clinics, which offered low-cost care in the Houston metro area. The order forced the clinics to shut down, preventing her clients—most of whom are Spanish-speaking, low-income, and uninsured—from receiving care.
In February, Rojas’ attorney told a three-judge appellate panel reviewing the temporary restraining order that Paxton’s office conducted an “incredibly shoddy” investigation and “jumped to some incredibly wild conclusions.” The attorney, who is asking the appeals court to allow Rojas to reopen her clinics, said that Paxton’s allegation that the clinics provided abortion care in violation of the state’s ban is false and that “the state completely failed to prove or show that any abortions were happening or that any unlawful practice was happening at the clinics.”
In the separate criminal case against her, Rojas has experienced intense carceral violence by the state. Rojas’ friend said that Rojas was “pulled over by the police at gunpoint and handcuffed” and that the police “wouldn’t tell her what was happening” when she was arrested. According to her attorney, Rojas spent 10 days in jail and had to post a $1.4 million bond to secure her release. She is now required to wear an ankle monitor and faces significant travel restrictions.
Reproductive justice advocates have said that it is no coincidence that the first person prosecuted under Texas’ abortion law is a Latina midwife. Public opinion on abortion care is overwhelmingly positive and a large percentage of people are concerned about states criminalizing doctors and nurses. So instead of targeting doctors, Paxton is going after a Latina midwife and attempting to weaponize anti-immigrant sentiment to divert public outrage, sensationalizing the arrests of Rojas and her clinic staff by labeling them “foreign nationals” who are part of an “evil” “cabal of abortion-loving radicals.”
Paxton’s effort to limit healthcare access by targeting midwifery draws on a long history of anti-immigrant, anti-Black, and anti-Indigenous policies embedded in regulations that restrict midwives. While modern gynecology was built in part on the exploitation and medical torture of Black female slaves, many hospitals throughout the 19th and 20th centuries refused to serve Black, immigrant and Indigenous women. Even after hospitals were required to desegregate and provide care to Black, immigrant and Indigenous women, these women still faced disproportionate rates of adverse health outcomes, including high rates of infant and maternal mortality, due to persistent healthcare inequities and discrimination within the medical system.
Midwives filled these gaps. As explained by the Black Women’s Health Imperative, “[b]efore hospitals would serve us, Granny Midwives did.” Research shows that community-based maternal care, such as midwifery, is safe and effective and improves maternal health outcomes. However, because midwives have primarily served people marginalized by the medical system, the profession has historically faced—and continues to face—significant barriers to providing care.
As gynecology and obstetrics became increasingly medicalized over the 20th century, white male doctors began to view Black, immigrant, and Indigenous midwives as threats. They saw midwives not only as competitors for patients and income, but also as providers of what they considered inferior obstetrical care. These physicians argued that gynecology and obstetrics could only be practiced properly by formally trained male professionals like themselves, delivering care in hospital settings. Of course, the universities that provided their elite training, the medical associations they were members of, and the institutions they practiced at excluded Black, immigrant, and Indigenous women.
In their attempt to ostracize midwifery, male gynecologists engaged in a smear campaign describing the practice as unhygienic, dangerous, ineffective, and unprofessional. One such obstetrician, Dr. Joseph DeLee, said in 1915 that “the midwife is a relic of barbarism.” Others called midwives, “incompetent,” “witches,” “unclean," “savages,” and “untrustworthy."
In response to organized medicine’s attack on midwifery, states began to pass laws regulating, and even criminalizing, the practice of midwifery. Nurse-midwifery programs emerged in the 1920s to formalize the profession, offering licensure to white women while systematically excluding Black women from such programs.
Today, the majority of states regulate or prohibit midwifery, and the availability of midwives is significantly lower in states with larger Black populations. Texas, for instance, requires that midwives have a current certification from the North American Registry of Midwives or have completed an educational course accredited by the Midwife Education Accreditation Council. Rojas is licensed as a midwife in Texas and, while Paxton is trying to criminalize Rojas for practicing medicine without a license, midwives are allowed under state law to provide prescription drugs to patients under the supervision of a licensed physician, which Rojas’s attorneys say she did.
At the same time, infant and maternal mortality rates are increasing across the country—especially in states with abortion bans. Between 2018 and 2020, Texas saw a 63% increase in maternal mortality and researchers believe that Texas abortion ban has resulted in an increase in infant mortality rates in the state. Although reproductive justice advocates assert that expanding support for community-based models of care, like midwifery, could improve such maternal and infant health outcomes, Paxton’s targeting of Rojas and other care workers in the state seems to show that Texas is hellbent on continuing the legacy of racialized attacks on midwives despite the dire need for care.